On September 11, 2012, NELA and its associated educational and charitable organization, The Employee Rights Advocacy Institute For Law & Policy, joined with two dozen workers’ rights organizations to file an amicus brief in support of the National Labor Relations Board (Board) in D.R. Horton v. National Labor Relations Board, currently pending before the Fifth Circuit Court of Appeals. NELA’s brief urges the Fifth Circuit to affirm the earlier ruling of the Board in D.R. Horton and Michael Cuda, 357 NLRB No. 184 (2012).
The brief argues that requiring workers, as a condition of employment, to waive their rights to bring class, collective, joint, or representative actions in any forum violates those workers’ rights under sections 7 and 8(a)(1) of the National Labor Relations Act (NLRA). The brief discusses the well-settled principle that workers have a substantive right under the NLRA to use the judicial forum to achieve more favorable terms or conditions of employment. In addition, the brief points out that the availability of class actions not only makes vindicating the claims of low-wage workers cost-effective, but also provides an additional layer of protection against retaliation.
The brief further argues that the Board’s conclusions about the NLRA do not create a conflict with the Federal Arbitration Act (FAA). The U.S. Supreme Court long ago recognized that federal courts cannot enforce the provisions of a contract that violate the NLRA, and more recently the Supreme Court has held that arbitration agreements cannot strip employees of any of their federal substantive statutory rights. Ergo, the issues in this case are distinguishable from those at stake in AT&T Mobility, LLC v. Concepcion, as the plaintiffs in Concepcion did not allege the violation of any substantive federal statutory rights.
NELA’s brief was authored by Michael C. Subit of Frank Freed Subit & Thomas (Seattle, WA), who also authored our amicus brief before the Board below. NELA Amicus Advisory Council Co-Chair Victoria W. Ni and Cliff Palefsky provided valuable feedback during the drafting process, and reviewed the brief on NELA’s behalf.